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Sunday, June 17, 2012

Punishment must fit the crime

The issue of whether punishment fits the crime has been the flavour of the week for me with two previous posts dealing with the question of corporal punishment for vandalism.

Hot on the heels of that we have Dr Woffles Wu being fined $1000 for abetting in providing misleading information to the police in relation to a traffic offence. The facts as reported in the newspapers seem to suggest that after Woffles Wu had commited speeding offences, his elderly employee had admitted to the commission of the offences.

When I first read that I assumed that Dr Wu would have been charged under the Penal Code. The obvious provision that I had in mind was s.182 of the Penal Code.

False information, with intent to cause a public servant to use his lawful power to the injury of another person

182. Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to use the lawful power of such public servant to the injury or annoyance of any person, or to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to $5,000, or with both.

The other likely provision was s.204A of the PEnal Code:

204A. Whoever intentionally obstructs, prevents, perverts or defeats the course of justice shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both.

Giving false information to the police (and to some extent obstructing the course of justice) is ordinarily treated by the judiciary as being rather serious and in the past custodial sentences have been given for such offences. I was understandably surprised (and so were other friends of mine in the legal profession) that Woffles Wu did not get a custodial sentence.

I assumed that the mitigation plea by the counsel must have been really good. Of course, plenty of speculation arose as to whether he was treated leniently because of the fact that he was a well connected person. One blogger came up with a catchy line.... "In the land of the saggy, the man with the botox syringe is king." See: http://everythingalsocomplain.com/2012/06/13/woffles-wu-lying-to-the-police/
One PAP MP, Hri Kumar, joined in the fray by lamenting the inconsistency in our sentencing regime. I am very glad that he did. We seriously need to look at our criminal laws as a whole come up with a coherent approach to sentencing. In those areas where judges are given discretion, we need a clear and transparent sentencing policy for the courts.http://hri-kumar.blogspot.sg/2012/06/crime-and-punishment.html

Something was not quite right with the sentence and I couldn't bring myself to believe that the court would have let Woffles Wu off so easily given existing sentencing precedent for similar offences. Charlie Lim Chau Lee was sentenced to imprisonment for 6 months for getting his friends to take the rap for a traffic offence committed by him. The difference in the sentencing is too stark to be dismissed as merely difference based on the facts of the individual cases.

The inevitable perception building up amongst the public is that the rich and the elite can get away with lighter punishment when compared to ordinary citizens. This is the general trend of commentary emerging on blogosphere right now. Up till this morning, I was having some difficulty reconciling the picture that was building up. I can't imagine that our judiciary will act so inconsistently that Woffles Wu could get away with a fine.

So, it turns out that this is a case of prosecutorial discretion as opposed to judicial leniency. AGC explains in the press statement the reason for not charging Woffles Wu under s.204A. The provision was not enacted at the time that the offence had been committed. That is a valid legal position. But, of course, I can't help but wonder why he was not charged under s.182 of the Penal Code. That was, to me, the most obvious provision for an offence such as this.

The AGC in its press release has given its reason for not proceeding under s.182:

"The charge preferred against an accused person would be calibrated to reflect the seriousness of the criminal act and the fact situation, and whether the legislation in question provides a specific provision dealing with the criminal act or whether reliance has to be placed on general legislation such as the Penal Code. On the facts of this case, as there was no major accident or injury, it was considered appropriate to proceed under s 81(3) of the Road Traffic Act rather than invoke the general provisions of the Penal Code, such as s 182."

Firstly, I accept the AGC's position on s.204A. But, I find it hard to accept the position taken in relation to s.182. I am not convinced that the lack of injury should have been considered. The gravamen of the offence involving giving of false information is the falsity of the information and deliberately misleading public officials in their administration of justice. False information could have been given in relation to a littering offence. That does not detract from the seriousness of the fact that false information was given in the first place. The fact that there was no injury involved should not have been decisive in the decision not to prosecute under s.182 of the Penal Code.

I am pretty sure that if the charge was under s.182, the judge would have imposed a custodial sentence. I will cut some slack to the prosecution here though. Making a decision as to the offence to be charged is not an easy one and it is inevitable that tough decisions have to be made. It is unfortunate that the prosecution chose to charge Woffles Wu under the Road Traffic Act as it has sent a very wrong signal to the public. Too many people are now under the impression that the rich can get away with a light sentence. I am sure that this factor did not figure at all in the AGC's deliberation. But, this is the perception that has arisen.

15 comments:

I cannot agree with your take on the consequences of giving false information. Surely the consequences of one's action has an impact on sentencing. If it were otherwise we would be reverting to a previous sentencing policy of "pre-emptive strike" or punishing for a "pre-crime". Our previous Chief Justice in rejecting leniency for youth charged with rioting had said that he will impose a harsher punishment even though no one was killed as he will not wait for them to kill someone. This is a sentencing philosophy we would want to move away from.

Thanks for once again helping the public to understand a little bit more about our law.

However, weren't it a bit presumptuous to say: "I am sure that this factor did not figure at all in the AGC's deliberation."

For, how do or would you know?

I have nothing against the doctor, but committing the offence twice smacks of someone who had not learned his lesson after the first time and a habit of getting someone to clean up after the mess he had created - a spoiled brat mentality. And no one in the world can convince me that the old employee of his did it entirely on his own accord and volition.Phooey!!!

Anon--6.04pmI can understand the need to consider whether injury was a consequence of the act if we are dealing with the traffic offence. Specifically, speeding, reckless/careless driving, drunk driving - these offences could involve injury or alternatively no injury may have occurred.I agree that a person causing injury as a result of careless driving should be sentenced more heavily than one that caused no injury. But, the offence that we are dealing with is one involving giving false information to the police. The 'injury' that is caused is not physical. In fact, no such injury would occur. So, the AGC was wrong to consider injury as a factor. The injury caused would have been the fact that an innocent man would have been punished (albeit consensually) for an offence he did not commit. So, the factor that AGC should have looked at is whether the false information resulted in someone being convicted for an offence. It doesn't amount to 'pre-crime'. The offence is committed by the very fact of telling a lie to the police.

I am just trying to take the more innocent perspective on the AGC's reasons. :-)

I agree that the exercise of prosecutorial discretion here gives rise to too much suspicion given the way other offenders have been treated. Persons that got friends to take the rap for traffic offences have usually been charged under s.182 of the Penal Code.

Minister Shanmugam: "I was told by AGC that there was no evidence of any money being paid, there were no repeated offences, as well as a few other possible reasons."

1) "No evidence of any money being paid" - Is Police incompetent in nailing down evidence? Is Attorney-General inept in phrasing charge to infer payment?

2) "No repeated offences" - Waffling Woffles committed SAME OFFENCE TWICE - viz, in 2005 and 2006. Does Attorney-General and Law Minister have a special definition for "repeated"?

3) Brazen inconsistency - Singapore abolished jury system to remove any untoward lay-person bias in court verdict. So why is the court giving weightage (if any) to testimonials by lay-persons who are inherently biased towards the charged person, whether by ties of family, friendship or business?

If it walks like a duck and quacks like a duck, it is a duck. Or a dud in this case. PAP Govt sucks when they duck core issue of "Justice not seen to be done".

All I can say is that if your assertions are to be used, any sibling or spouse who likewise who assists in such would result in the same sentence you seek other than the cases cited by yourself or the partisan writer within TOC.

If there is anything I won't believe the AGC is incapable of is that of fixing people up - on its own or at someone's behest.

Take a look at Chee soon Juan, Tan Liang Hong, Alan Shadrake, Francis Seow, Tan Wah Piow, the death row boy etc. Minister Shan claimed that the AGC acts independently, my foot! How is that even possible when it's the govt instrument to further and accomplish its political ends.

Hi Subra: (in response to your response to Anon-6.04pm) There are lies and there are lies. All (yes, I believe ALL) of us lie.

In the context of what is being discussed now, some lie occasionally, some habitually. Some do it for a "good cause", some for ignoble motive. Some lie to save their love ones (mother to shield her child) while others for monetary gain.

The effect of some lies may be horrendous (sending an innocent person to jail or hang) or less so (taking a rap for a traffic offence). Yes, all such lies pervert the course of justice and should be prosecuted to maintain the societal's expectations that everyone should play by the "rules of the game", nonetheless, the fact remain that there are different effects to lying to the police.

I'm by no means a rich person - I'm semi-retired struggling to make ends meet - but we have to be mindful of reverse discrimination where a person is discriminated against just because he is rich. We have to see whether what AGC said makes sense and not assume WW got away with a lighter charge just because he is rich.

If we can find documented or reported cases (and not just anecdotal stories or what some relative of some other relative said) of similar facts scenario being treated differently by AGC, then the AGC may have some explaining to do.

Anon@2.34am "but we have to be mindful of reverse discrimination where a person is discriminated against just because he is rich."

In the absence of further clarification (or justification depending on how you choose to view it) beyond what the AGC has provided so far, TOC's Choo's catalogue of similar offenders who were charged and jailed under a more demanding section still stands unrebutted. AGC's silence seems to suggest the stand that it has no case to answer or, and this would be the most likely take for most of us, the AGC has no credible response or answer to it. The pervasive feeling of double standard, that WW has been dealt with leniently, is not going to go away anytime soon. I am afraid in this day and age, people in authority can no longer presume that whatever they say or do would be meekly and unquestioningly accepted by the docile mass. Those days are passing into history even as we speak.

About Me

I blog primarily about the law & politics in Singapore, occassionally veering off into socio-economic issues. Article 14 of the Singapore Constitution protects the Freedom of Speech, Expression,Peaceful Assembly and Association. But, there are excessive restrictions on these Freedoms. I hope that I can, in my small way, contribute to the gradual realisation of these Freedoms in our land